Kingdom Of Eswatini

Relevant legislation:

  • Constitution of the Kingdom of Eswatini (Swaziland) 2005
  • United Nations Convention Against Corruption (UNCAC) 2003
  • Southern African Development Community (SADC) Protocol Against Corruption
  • Money Laundering Prevention Act 2001
  • Serious Offences (Confiscation of Proceeds) Act 2001
  • Prevention of Corruption Act 2006
  • Suppression of Terrorism Act 2008

Summary

The Kingdom of Eswatini, formerly Swaziland, became independent from Britain in 1968, with the first elections being held in 1972. In 1973, King Sobhuza II issued a decree repealing the 1968 Constitution which had established a constitutional monarchy and assumed supreme power vesting all legislative, executive and judicial power in himself. The current monarch, King Mswati III, who assumed power in 1986, continues to rule in terms of the 1973 decree.

The 2005 constitution is currently in force, but all power continues to vest in the monarch. Constitutional legal principles have no practical legal application as in other countries such as South Africa, Botswana and Namibia for example.

The current constitutional framework has several deficiencies:

  • it fails to protect the rights of freedom of expression and association
  • it fails to legally enforce social and economic rights, despite Eswatini being a signatory to the United Nations Convention on Civil and Political Rights
  • there is no separation of powers as in the case of other jurisdictions like South Africa where there are three distinct organs of government-: the executive, legislature and judiciary
  • King Mswati III has total legal immunity and total legislative authority in that he has the authority to dissolve parliament
  • King Mswati III effectively has supreme executive authority and effectively controls the Judiciary.

Against this background, with freedom of the press restricted and with political opposition parties being banned, it is unlikely that whistleblowers would come forward in such a repressive environment.

Whistleblower Laws And Policy

Eswatini is a signatory to the United Nations Convention Against Corruption (UNCAC), the Southern African Development Community (SADC) Protocol Against Corruption, as well as being a member of the African Union.

Currently, Eswatini does not have any whistleblower legislation comparable to the Zambian Public Interest Disclosure Act (Act 4 /2010) or the South African Protected Disclosures Act (Act 26/2000). It does have laws which address corruption, fraud and related misconduct; and has enacted other laws designed to counteract the effects of corrupt practices within its public sector institutions.

The Prevention of Corruption Act no.3 of 2006 was enacted for the following reasons:

  • to investigate and punish corrupt activities
  • to establish an anti-corruption commission
  • to provide for other matters incidental to the prevention of corruption.

The establishment of the Anti-Corruption Commission (ACC) within the framework of the law was to co-ordinate all anti-corruption activities under the guidance of a National Anti-Corruption Forum. The ACC is largely an investigative agency funded by the Ministry of Justice.

Under the act, the King of Eswatini is empowered to appoint the Director and members of the Commission who serve at his request for a period of five (5) years. The Director of the ACC appoints investigators who are empowered to investigate all reports of improper conduct and corruption; and on the evidence of such refer those matters to the Director of Public Prosecutions for decision on whether to prosecute or not. These investigators have the power in terms of section 13 of the act to enter any premises for the purposes of search and seizure of any evidence likely to assist in confirming claims of impropriety and have the power to arrest implicated persons. A drawback is the discretion to decline to conduct an investigation if the DPP and the investigative team are of the opinion that the disclosure is “trivial, frivolous, vexatious or not made in good faith’’, in terms of section 10(2) of the Prevention of Corruption Act.

Eswatini has also enacted the Swaziland Procurement Act in 2012 which sets a code of conduct for the public procurement sector officials and employees, and incidental thereto, the Swaziland Public Procurement Agency (SPPRA) was established in 2012 to regulate and keep track of public spending and public funds.

Section 27 of the Swaziland Procurement Act prohibits suppliers from offering gifts or hospitality to any staff of the procuring entity, members of the tender board, or officials and employees of the Swaziland Public Procurement Agency.

Strict penalties such as a fine of 100 000 emalangeni or ten years direct imprisonment are applicable upon conviction. In matters where a law enforcement official or a member of the public prosecutor’s office are convicted of bribery such person is liable for a fine up to 200 000 emalangeni.

Secrecy Laws

The principle of confidentiality and protection of journalistic privilege does not exist in terms of Swazi law. The Official Secrets Act prohibits any person who has been entrusted with any information from an official source or government from disclosing such information to the prejudice of Eswatini, and is liable on conviction to payment of a fine or five (5) years imprisonment or both. This provision is one of many laws which deters potential whistleblowers and reporters from disclosing and reporting acts of improper conduct and corruption.

A throwback to colonial times is the Cape Libel Act of 1882 which incurs a two year term of imprisonment for defamation on conviction if anyone publishes a defamatory statement or report which intended to “injure the reputation of a person and expose him or her to hatred, ridicule or contempt”. Such legislation is often activated to silence critics of government and those close to the king and the royal court.

Media Rights And Freedoms

The Official Secrets Act and the Sedition and Subversive Activities Act (1938) are two examples of the serious impediments to media freedoms and the right to freedom of expression in Eswatini. Any reports or publications critical of the King and the government of Eswatini are seditious in terms of the latter act, thus closing off public criticism of the government and its policies.

In some instances, journalists have been accused of high treason for writing articles critical of the king and the monarchy, and the penalty on conviction of this crime is death. Under these circumstances most journalists exercise self-censorship as the courts are an extension of the monarch and brook no criticism or opposition to his desires.

There are no protections afforded to the media in terms of protection of sources of information and this effectively means that very few, but the most courageous members of the society speak out against unlawful government practices and corruption.

Whistleblower Cases

There are no public cases of whistleblowing in Eswatini on the record. Journalists run a gamut of threats ranging from intimidation to assaults, arrest and imprisonment; with some facing the prospect of even being killed in their course of reporting on matters of public interest. In April 2020, the editor of the online Swati Newsweek Eugene Dube, was interrogated for seven hours after the paper ran a story deemed to be critical of the Eswatini government’s response to the coronavirus pandemic. The police seized laptops, several mobile telephones and notebooks in their enquiry.

Swati Newsweek was targeted again for an interview with the leader of a new political party who had advocated for the removal of the king as absolute monarch and replacing him with a multi-party democratic system of government. This was labelled as seditious as opposition party politics are banned in Eswatini.

In another matter, Zweli Martin Dlamini, editor of the Swaziland News, reported in February 2020 that he received death threats from the Minister of Information, Princess Sikhanyiso , eldest daughter of King Mswati III after the paper ran a series of articles questioning government policies. He was subsequently arrested for sedition and tortured while in custody. Upon his release Zweli Martin Dlamini fled to South Africa for fear of being killed for his reporting on issues of public interest which exposed the rot of corruption in Eswatini.

There is effectively no protection for whistleblowers in Eswatini and no likelihood of any progressive legislation being enacted in the foreseeable future.

Shortcomings In Legislation And Possible Reforms

Eswatini has no whistleblower law nor does it have policies and practices in place to protect such reporters from reprisals from persons accused and exposed by the reporting of the corrupt practices. Such legislation must be enacted to encourage greater transparency in both the public sector and in private institutions.

The Constitution must guarantee equal protection under law, which necessarily means that the monarch must be accountable and as such his legal immunity must be revoked. This would free the judiciary to rule on matters without interference from the king and his political assigns and open the public discourse on the destabilising effects of corruption and bribery on Eswatini’s economic, social and political development.

The ban on opposition parties should be lifted to enhance the right to freedom of expression and association. The restrictions on press freedoms would be lifted which would allow for the free flow of information, which has an effect of bringing greater exposure to the Eswatini public of the resources at their disposal in the fight against corruption.

Without the political will to enforce the provisions of the law and to adhere to the constitutional objectives, the fight against corruption is lost.

Knowledge, support and action centers

Eswatini Anti-Corruption Commission

The Eswatini Anti-Corruption Commission is a government agency under the Ministry of Justice and Constitutional Affairs. Its core objectives are to prevent and combat corruption and to achieve zero tolerance of corruption. It is seen as being largely ineffective by the majority of Eswatini 0citizens and civil society organisations given the total control the monarchy exercises over all levels of state power.

  • Address: 3rd Floor Mbandzeni House, Libandla Street, Mbabane, Eswatini
  • Tollfree 800 3500
  • Tel: + 268 240 3179
  • Email: anticorruption@acc.org.sz

Committee to Protect Journalists CJP

Amnesty International is a global charity organisation that promotes the protection and advancement of human rights globally. Its focus is the promotion of all civil, social, political and economic rights and the observance of these by governments and state institutions and private sector.

  • Address: PO Box 2675, New York, NY 10108
  • Tel: +1 212 465 1004
  • Fax: +1 212 465 9568

Amnesty International (Southern Africa)

The Office of the Ombudsman seeks to promote administrative justice by investigating allegations of maladministration within the public sector. The Ombudsman is an alternative dispute resolution mechanism, and investigates complaints of improper administrative conduct or action, and recommends appropriate remedial action where, in the opinion of the Ombudsman, the complainant has suffered injustice arising from the administrative conduct.

  • Address: 3 on Glenhove, Melrose Estate 2196, Johannesburg, South Africa
  • Tel: +27 11 283 6000
  • Twitter: @AmnestySARO

Keeping Score: How does Eswatini compare with international standards

The following standards for whistleblower laws are derived from guidelines developed by the OECD, Council of Europe, Blueprint for Free Speech, Government Accountability Project and Transparency International.

Key

1 = The standard is comprehensively or very well reflected in the laws
2 = The standard is partially reflected in the laws
3 = The standard is poorly reflected or absent from the laws

Standard Public Sector Private Sector
A broad range of organisations and workplaces are covered 3 3
A broad range of offenses may be reported as whistleblowing 3 3
The definition of who may qualify as a whistleblower is broad 3 3
A range of disclosure channels to report internally or to regulators is in place 3 3
People who make disclosures to external organizations, the media or the public are protected 3 3
The threshold for protection is a reasonable belief that the information disclosed is true 3 3
There are opportunities and protections for anonymous disclosures 3 3
Whistleblower confidentiality is protected unless expressly waived 3 3
Organizations are required to establish internal disclosure procedures 3 3
Whistleblowers are protected from a broad range of retaliatory acts 3 3
Victimized whistleblowers have access to a full range of remedies and compensation 3 3
Those who retaliate against a whistleblower are subject to sanctions 3 3
A whistleblower oversight or regulatory agency has been designated 3 3
Whistleblower laws are administered and reviewed transparently 3 3